[ v60 p367 ]

60 FLRA No. 77

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

and

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
CUSTOMS AND BORDER PROTECTION [n1] 
WASHINGTON, DC
(Agency)

0-NG-2627

_____

DECISION AND ORDER
ON  NEGOTIABILITY ISSUES

November 8, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n2] 

I.      Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of proposals related to modifications of the Agency's Firearms and Use of Force Handbook sought by the Union. For the reasons set forth below, we find that portions of one proposal are within the duty to bargain and dismiss the petition with respect to the other proposals.

II.      Background

      At the time this petition was filed, the United States Customs Service (Customs or the Agency) was a component of the United States Department of the Treasury. As such, it was subject to various Treasury Department internal regulations, including Treasury's policies regarding the use and storage of firearms in connection with assigned work performed by Customs employees who carry firearms as a condition of their employment. It is not disputed that the National Treasury Employees Union (NTEU or Union) bargaining unit employees were subject to both Treasury Department and Customs Service policies regarding firearms use and storage. Although the parties' various submissions in these proceedings set forth conflicting positions as to what the history of firearms storage is or has been, certain facts are not in dispute.

      These employees have been carrying firearms as part of their duties for many years. Customs has employees carrying firearms at approximately 300 locations and in a limited number of locations, it permits employees to store authorized firearms at the work site during non-duty work hours, when the security risk in doing so is found acceptable by the Agency. Agency Reply at 2, 3 (Reply). In that regard, the Union notes "that aside from allowing overnight storage in the 1980's and 1990's when secure facilities were available, many Customs locations currently allow for such overnight storage." Union Response at 4 (Response). Approximately ten locations were identified by the Union as currently permitting the storage of authorized firearms at work during non-work time. Id. Thus, in the great majority of locations, employees carry their firearm between work and home and either store it at home under secure conditions with an Agency-provided safety lock or carry it under a 24-hour carry policy. [n3] 

      An employee's storage or carriage of his or her authorized firearm outside of duty hours has been the subject of agency regulation for some time, as evidenced by the examples of such regulation dating back to 1986 provided by the parties. A Customs Service Directive dated February 10, 1986, entitled "Firearms Policy," is Union Exhibit 3 of its Response. Page 5 of that document reflected guidance both for employees who stored their authorized firearm at the work site and those who carried their authorized firearm home for secure storage.

      In 1991 the parties negotiated a memorandum of understanding (MOU) regarding the implementation of a Customs Service directive on firearms policy. Response, Exhibit 4. The MOU noted that "[e]mployees can carry their firearms home or leave them at the work site in a secure locker." See id. In 1996, the Agency issued a "Firearms and Use of Force Handbook." Agency Statement of Position, Attachment 1 (SOP). [ v60 p368 ] Storage of firearms at the work site is not provided for in the handbook, but it does discuss storage of firearms at other locations. SOP, Attachment 2. The handbook states, "[e]mployees are expected to exercise good judgment in providing adequate security to all Service-issued and Service-authorized, personally-owned firearms." See id.

      In March 2000, the Agency issued a memorandum entitled "24-Hour Carry of Firearms by Office of Field Operations Personnel." SOP, Attachment 3. The memo explained that the 24-hour carry policy applies to those who are qualified to use service-issued firearms and is voluntary. Of note is the following paragraph from the first page of this document:

This authority presents a tremendous responsibility and has potential for significant liabilities to the individual officer, as well as the Customs Service. Any officer who elects to carry a service-issued firearm off-duty must realize that his or her behavior must be significantly modified while armed. There are major restrictions in behavior and limitations on mobility, as the weapon must remain under the officer's control at all times.

Id.

      The memo goes on to discuss these restrictions and limitations, noting that firearms may be used in only two situations, self-defense and aiding another law enforcement officer and discusses the limitations on the use of deadly force and that using a firearm is not required for every violent situation confronted. Id. According to the memo, officers are not permitted to consume alcoholic beverages while carrying a firearm under the 24-hour carry policy and may not leave a firearm unattended or unsecured, or give the firearm to another individual to hold for the officer. Officers are also not permitted to use their firearms for the sole purpose of disabling a moving vehicle or vessel, and may not fire warning shots. The memo requires officers not in uniform to keep their firearm concealed when carrying the firearm under the 24-hour carry policy. No other restrictions on behavior or limitations on movement are set out in the document. As a result, employees covered by the 24-hour carry policy are not required to travel directly between home and work while carrying their authorized firearm.

      Under current Treasury Department and Customs Service policy, there is no provision concerning storage of authorized firearms at Government offices while employees are off-duty. In that regard, a Department of Treasury Memorandum provides that employees "authorized to carry firearms in the performance of their official duties are personally responsible for the security of all firearms to prevent unauthorized use, unintentional discharge, and theft." See Department of Treasury Memorandum dated December 28, 2000, entitled "Implementation of Treasury Firearms Safety and Security Policy," Union Response, Exhibit 13, 1-2 (Treasury Policy). The Treasury Policy also contains requirements governing security and storage of authorized firearms when employees are in Government offices, in their personal residences, using a vehicle, and when the firearms are not under their immediate control. [n4] 

III.      Proposal 10(a)

Customs will provide all officers who are required to carry a firearm in the performance of their job duties with a suitable locker or safe for overnight firearm storage.

A.      Meaning of the Proposal

      Proposal 10(a) would modify the "Firearms and Use of Force Handbook" by requiring the Agency to provide all officers who are required to carry a firearm in the performance of their job duties with a suitable locker or safe at the work site for firearm storage when off-duty. According to the Union, the intent of Proposal 10(a) is to provide employees with off-duty storage at their duty location to avoid home storage and the impact that practice places upon their commute.

B.      Union's Motion To Strike

      In its Reply to the Union's Response, the Agency asserts, for the first time, that Proposal 10(a) concerns the technology of performing work. The Union moves to strike that portion of the Agency's Reply. The Union, citing 5 C.F.R. § 2424.26(a), argues that the Agency should not be permitted to make an argument concerning the technology of performing work because the Agency did not raise that argument in response to any of the arguments advanced by the Union in its Response. [n5] 

      Under the Authority's Regulations, an agency's reply is "specifically limited to the matters raised for the first time in the exclusive representative's response." 5 C.F.R. § 2424.26(c). Moreover, the Authority's Regulations [ v60 p369 ] do not permit an agency to subsequently raise an argument that could have been raised in a statement of position but was not. 5 C.F.R. § 2424.32(c)(ii). Here, the Agency could have raised its § 7106(b)(1) argument in its SOP. Having failed to do so, it cannot raise the argument in its Reply.

      The Agency, citing a number of cases, claims that the Authority has permitted parties to raise an issue for the first time in a later stage of the negotiability appeal process. But, none of the cases cited involved situations where, as here, an agency, in direct violation of the Authority's Regulations, attempted to raise an argument for the first time in its Reply. The Agency also claims that because the matter is electively negotiable under § 7106(b)(1), it can terminate bargaining at any point. However, because the Agency failed to assert that argument in its SOP, that issue is not properly before the Authority. Therefore, the Union's motion to strike that portion of the Agency's Reply is granted and the Agency's argument based upon the technology used to perform its work will not be considered.

C.      Positions of the Parties

1.     Agency

      With regard to the right to determine its internal security practices, the Agency maintains that not all Customs facilities are secure enough to permit off-duty firearm storage. The Agency has determined that individual employees being responsible for storing their firearms protects its personnel, property and operations better than storage at ill-equipped facilities which would place employees, property and the public in jeopardy by increasing the risk of theft or misuse of the firearms. The Agency further claims that Proposal 10(a) excessively interferes with its right to determine its internal security practices because employees with firearms stored at their regular duty station would have to return to that location to retrieve their firearm before they could report for overtime duties at another location, which would reduce security at the very location where increased security was required.

      For these same reasons, the Agency contends that Proposal 10(a) excessively interferes with its right to assign work. The Agency maintains that overtime assignments are not always performed at or near an employee's regular duty station. In the Agency's view, Proposal 10(a) would impose a significant restriction on management's ability to assign overtime work because an employee would have to return to his regular duty station to retrieve his or her firearm before reporting for overtime duty at another location. Moreover, the Agency asserts that because Proposal 10(a) directly interferes with its right to determine its internal security practices, it cannot be a procedure under § 7106(b)(2). See AFGE, Local 987, 37 FLRA 197 (1990), rev'd as to other matters, United States Dep't of the Air Force v. FLRA, 952 F.2d 446 (D.C. Cir. 1991) (Local 987).

      The Agency also argues that Proposal 10(a) is not an appropriate arrangement under the Statute. The Agency contends that if adopted, the proposal would prevent the Agency from acting at all with respect to determining how firearms should be stored during off-duty hours, an aspect of its internal security practices. The Agency also submits that the security obtained by its policy of requiring employees who are trained and authorized to carry firearms to retain access and exercise individual responsibility to prevent theft or misuse of their firearm while off-duty is superior to off-duty storage at ill-equipped facilities that are not staffed 24 hours a day. Thus, according to the Agency, the internal security obtained by virtue of this determination substantially outweighs the benefit intended by the proposal. In making that argument, the Agency points to the fact that proper off-duty storage at locations where it is not currently provided because of inadequate security would involve renovations of physical space and increased personnel costs when the Agency already provides and requires the use of safety lock devices for off-duty storage at an employee's residence.

      The Agency also contends that the Union has not demonstrated that employees suffer any adverse effects from the Agency's determination that its internal security is best served by having trained employees retain possession of the authorized firearms they use in the performance of their duties. Specifically, the Agency claims that any adverse impact that arises with respect to an employee's commute results from his or her election to utilize a service-authorized personally owned firearm to which the 24-hour carry authority does not apply. [n6] According to the Agency, under the 24-hour carry policy, employees can make reasonable stops and diversions between their residences and places of employment. Therefore, the Agency argues that Proposal 10(a) is not an appropriate arrangement as the benefit it purportedly offers is not an amelioration of an adverse impact arising from the exercise of a management right. [ v60 p370 ]

2.     Union

      Preliminarily, the Union disagrees with the Agency's contention that commuting restrictions are placed only upon those employees who carry personally-owned firearms. The Union argues they also apply to employees who carry Agency-issued firearms but elect not to apply for the Agency's 24-hour carry authority.

      The Union contends that the Agency has not shown how the retrieval of a firearm before performing work would interfere with its right to assign work or its right to determine its internal security practices. In any event, the Union claims that many, if not most, overtime assignments are worked in the same location as the employee's regular duty station. Further, the Union maintains that its proposal would allow for a suitable locker or safe either where employees perform overtime or their regular duty station.

      The Union also maintains that requiring employees to take firearms into their residences allows the Agency to abdicate its internal security responsibility by transferring that responsibility to its employees. In the Union's view, the issue in this case is not internal security, but requiring employees to store government property at the employee's residence. The Union contends that there is no authority entitling the Agency to require employees to store government equipment at their residences without compensation.

      The Union asserts that Proposal 10(a) is a negotiable procedure to address how the Agency will exercise its right to require its employees to carry firearms in the performance of their duties. The Union maintains that its proposal neither prevents the Agency from acting at all, nor does it directly interfere with its rights to determine its internal security practices or to assign work.

      The Union also argues that Proposal 10(a) is an appropriate arrangement for employees affected by the Agency's exercise of its right to determine its internal security practices. The Union maintains that the Agency's requirements of on-duty firearm carriage and off-duty residential firearm storage adversely impact employees in a number of ways. First, the Union argues that employees do not want to bring firearms into their homes because of the danger firearms present. Moreover, the Union contends that if a firearm is stolen from a residence it could result in criminal or civil liability and discipline for the employee. Additionally, the Union maintains that employees who commute using public transportation feel uncomfortable carrying a firearm, as it makes them a target for aggression. For the employees who must commute directly between their residences and work under current Agency policy, the inability to store their firearm at the work site when off duty increases travel and associated costs for the employee. The Union argues that Proposal 10(a) would alleviate all of these adverse impacts and that no other employees would be adversely impacted thereby.

      The Union claims that Proposal 10(a) would not excessively interfere with the Agency's right to determine internal security practices because it would permit the Agency to determine what secure facilities would be used for overnight firearms storage. In this connection, the Union notes that the Agency already permits on-duty storage of firearms during the performance of certain duties. The Union argues that Proposal 10(a) would merely extend the use of such storage to off-duty hours. The Union also claims that the Agency has allowed, and continues to allow off-duty storage of firearms at some facilities. Therefore, the Union submits, the benefits of its proposal outweigh any interference with management's rights and Proposal 10(a) is an appropriate arrangement.

D.      Analysis and Conclusions

1.      The proposal affects management's right to determine its internal security practices under § 7106(a)(1) of the Statute.

      It is well established that the right to determine internal security practices under § 7106(a)(1) of the Statute includes the authority to determine the policies and practices that are part of an agency's plan to secure or safeguard its personnel, physical property, or operations against internal or external risks. NTEU, 53 FLRA at 581. Where the agency shows a link, or reasonable connection, between its objective of securing or safeguarding its personnel, property, or operations and the policy or practice designed to implement that objective, a proposal that "conflicts with" the policy or practice affects management's right to determine its internal security practices. NTEU, 55 FLRA 1174, 1186 (1999) (NTEU). Upon finding such a link, the Authority will not "inquire into the extent of the measures employed to achieve the objective as long as they reasonably relate to the purpose for which the particular security plan or practice is adopted." Local 987, 37 FLRA at 200.

      Management rights under § 7106 of the Statute "encompass actions integral to the exercise of the right, including discussion and deliberation on the relevant factors upon which the decision to act is made." AFGE, Local 3434, 49 FLRA 382, 387 (1994) (Local 3434). Further, the management rights set forth in § 7106 protect [ v60 p371 ] an agency's judgments as to the factors that it will take into account in exercising those rights. NTEU, 47 FLRA 705, 723-25 (1993) (Authority explained that a proposal dictating factors an agency must consider when evaluating employee performance directly interfered with management's right to direct employees and assign work); AFGE, Local 683, 30 FLRA 497, 499-500 (1987) (Local 683) (Authority found management's right to determine its internal security practices extends to the judgments it makes in deciding between various internal security practices.) Therefore, the Authority will not review the merits of the deliberations, discussions and judgments an agency makes in reaching its ultimate determination as how to exercise its right to determine its internal security practices. AFSCME, Locals 2910 & 2477, 49 FLRA 834, 839 (1994) (Locals 2910 & 2477) (citing AFGE, Local 1920, 47 FLRA 340, 349 (1993) (Local 1920)). To do so would involve the Authority in reviewing an agency's judgments as to how it exercises its management right to determine internal security practices. For the same reason, the Statute precludes the negotiating process from intruding into an agency's substantive decision-making process pursuant to the exercise of a management right.

      Based on the record, we find that all of the Agency's duty locations do not have the same level of staffing nor are they under the same level of control by the Agency. Thus, all of its locations are not equally secure. As a result, the Agency has determined that the safest and most secure way to store firearms is by having the employee, who is trained and qualified with the firearm, maintain possession of it while off-duty. The Agency has decided that precluding firearm storage during off-duty periods at locations lacking adequate security for such storage reduces the risk of theft and misuse of firearms which protects Agency employees, property, operations and the public. As the Agency policies and practices at issue in this case relate to the protection of Agency personnel, property and operations, the Agency has established a link between its policies and practices and internal security concerns.

      Further, management's right to determine its internal security policies and practices under § 7106(a)(1) of the Statute includes the right to determine the level of security necessary to protect its personnel, property, and operations and the measures required to achieve that security level. See, e.g., NFFE, Local 2050, 36 FLRA 618, 625-27, 652-53 (1990) (Local 2050). In this regard, the Agency states that the existing security measures and controls at most of the Agency's duty locations are not sufficient to adequately secure firearms during off-duty hours. That is, in order to protect against theft or misuse of firearms during off-duty hours, implementation of the proposal would require the Agency to establish a level of security at all locations comparable to the security provided at duty locations where off-duty storage is currently allowed. By requiring such actions, the proposal affects management's right to determine its internal security policies and practices under § 7106(a)(1). [n7] See id.

      The Union's arguments in support of its claim that the proposal does not concern the Agency's internal security policies and practices essentially challenge the efficacy of the Agency's security policy regarding the storage of firearms during off-duty periods. However, as the Authority has consistently made clear, it will not review the alleged lack of effectiveness of an agency's choice of security policy as part of the negotiability determination. See Locals 2910 & 2477, 49 FLRA at 839; Lodge 1-F, 51 FLRA at 145. See also AFGE, Local 3302, 37 FLRA 350, 355 (1990). For these reasons, we find that the proposal affects management's right to determine its internal security practices under § 7106(a)(1) of the Statute.

2.      The proposal does not constitute a procedure under § 7106(b)(2) of the Statute.

      Proposals that require the adoption of security measures to ensure a specific level of security do not constitute negotiable procedures under § 7106(b)(2) of the Statute. See, e.g., NTEU, 59 FLRA at 754 (citing NFFE, Local 1482, 44 FLRA 637, 648 (1992)); Local 987, 37 FLRA at 202. By requiring the Agency to make changes and adopt measures at all duty locations where the Agency deems security currently insufficient to adequately secure firearms stored during off-duty hours, the proposal in this case does not constitute a procedure within the meaning of § 7106(b)(2) of the Statute. See id. [ v60 p372 ]

3.     The proposal does not constitute an appropriate arrangement under § 7106(b)(3) of the Statute.

      The test for determining whether a proposal is within the duty to bargain under § 7106(b)(3) is set out in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). Under that test, the Authority initially determines whether a proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. An arrangement must seek to mitigate adverse effects "flowing from the exercise of a protected management right." United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). To establish that a proposal is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from the exercise of management's rights and how those effects are adverse. See KANG, 21 FLRA at 31. Proposals that address speculative or hypothetical concerns do not constitute arrangements. See, e.g., NFFE, Local 2015, 53 FLRA 967, 973 (1997). The alleged arrangement must also be sufficiently tailored to compensate or benefit employees suffering adverse effects attributable to the exercise of management's rights. See, e.g., AFGE, Local 1687, 52 FLRA 521, 523 (1996). If a proposal is an arrangement, the Authority then determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management rights. KANG, 21 FLRA at 31-33.

      The Agency acknowledges that the proposal would operate as an arrangement by mitigating the adverse effects the Union believes result from the Agency's action of making employees responsible for the security of their authorized firearms during off-duty hours. We agree that the proposal constitutes an arrangement and we find that the proposal addresses concerns that are neither speculative nor hypothetical. Additionally, we find that the proposal is sufficiently tailored to those employees who take their authorized firearms home. However, although the proposal constitutes an arrangement within the meaning of § 7106(b)(3), we find for the reasons discussed below that the proposal is not an appropriate arrangement.

      In this case, the Agency has exercised its right to determine its internal security practices by having employees who are trained and qualified to carry firearms maintain possession of their firearms when off-duty. The Union's proposal would preclude the Agency from exercising that right by mandating a change that is inconsistent with the Agency's internal security decision. This proposal would allow employees to leave their firearms at the duty location upon completion of their shift even though the Agency has concluded that Agency personnel, property and operations would be better served if employees maintained possession and access to their firearms when off-duty. As such, the proposal excessively interferes with the exercise of the Agency's rights.

      The Authority has found that proposals do not constitute appropriate arrangements where the proposals negate or nullify management's proposed exercise of its § 7106(a) rights. See, e.g., NTEU, 59 FLRA at 755 (a proposal completely precluding the agency from having employees retain possession of their firearms while off-duty found to excessively interfere with management rights); AFGE, Nat'l Council of Field Labor Locals, Local 2139, 57 FLRA 292, 294 (2001) (proposal that completely precluded the agency from using language it wished to use in customer service policy excessively interfered with management rights); IFPTE, Local 1, 49 FLRA 225, 249 (1994) (IFPTE) (proposal that acted as an absolute restriction on the right to assign particular duties to certain employees found to excessively interfere with management's rights); NFFE, Local 28, 47 FLRA 873, 876-80 (1993) (proposal allowing unannounced random spot checks of hand-carried items only where there was reason to believe unauthorized possession or theft occurred found to eliminate the agency's internal security determination and excessively interfere with management rights); NFFE, Local 15, 30 FLRA 1046, 1057-58 (1988) (proposal that completely negated the agency's decision to use random drug testing for purposes of protecting security would reverse the substantive impact of that decision and found to excessively interfere with management rights); NAGE, Local R7-23, 23 FLRA 753, 759 (1986) (Local R7-23) (proposal negating management's exercise of its right to determine internal security found excessive when it reversed the substantive effect of management's action). The Authority reached these conclusions, even where the proposals' benefits to employees were significant, finding that proposals which erode or reverse the substantive effect of a management action taken pursuant to its management rights do not constitute appropriate arrangements. See, e.g., IFPTE, 49 FLRA at 249; Local R7-23, 23 FLRA at 759.

      While the risk of harm to employees and their families from firearms properly stored and secured at home is not taken lightly, the Authority is not in a position, and does not have the ability to second-guess the merits of an agency's determinations about what its internal security practices should be. Lodge 1-F, 51 FLRA at 145 and supra. Here, the Agency has determined that [ v60 p373 ] in order to protect its personnel, property and operations, firearms used by Agency employees in the performance of their duties need to be secured by the employees when they are off-duty. While we find that some employees would benefit from the Union's proposal, the burden on the Agency to secure facilities that are ill-equipped and unsuitable for off-duty storage of firearms is impractical and outweighs the benefits to employees. Thus, the proposal excessively interferes with the Agency's right to determine its internal security practices. [n8] 

      Consequently, we conclude that by precluding the Agency from having employees retain possession of their firearms while off-duty, the Union's proposal imposes a burden upon the Agency's exercise of its management right to determine its internal security practices that outweighs the benefits provided to some unit employees. NTEU, 59 FLRA at 755; AFGE, Nat'l Veterans Admin. Council, 40 FLRA 1052, 1056 (1991) (a proposal that precludes an agency from exercising a management right inherently cannot constitute an appropriate arrangement); see also, AFGE, Local 1164, 55 FLRA 999, 1004 (1999); AFGE, Local 1917, 55 FLRA 228, 235 (1999). Therefore, the proposal does not constitute an appropriate arrangement.

      While one might argue that the Agency is not precluded from exercising its management right in some other way, we note that the effect of such a proposal would be to permit an exclusive representative to bargain over an agency's substantive exercise of its management rights, a conclusion explained supra. The Authority has made clear that Congress did not empower agencies to bargain away their authority to make decisions regarding the exercise of their management rights. Great Lakes Program Serv. Ctr., Soc. Sec. Admin., Dep't of Health and Human Servs., Chicago, Ill., 9 FLRA 499, 510-11 (1982). To hold otherwise would permit the same type of improper outcome discussed by the court in AFGE, Local 2782 v. FLRA, 702 F.2d 1183, 1188 (D.C. Cir. 1983) (a union does not have the ability, through impact and implementation bargaining, to undo or negate an agency's substantive exercise of its § 7106(a) rights).

      Accordingly, we find that the proposal is outside the duty to bargain because it excessively interferes with the Agency's right to determine its internal security practices. In view of this result, there is no need to address the Agency's argument regarding the interference the proposal places upon its right to assign work.

IV.      Proposal 11

Those officers who carry their weapons to and from their residences will be permitted to make reasonable diversions and stops between their residence and work. These diversions and stops will be defined as those that any ordinary citizen would make before and after work.

A.      Meaning of the Proposal

      Proposal 11 would permit certain employees who carry their authorized firearms between their residences and their work locations to make reasonable diversions and stops, as that term is defined in the proposal.

B.      Positions of the Parties

1.     Agency

      The Agency contends that the Union's proposal would interfere with its right to formulate policies as part of a plan to "secure or safeguard its personnel and physical property." SOP at 8-9 (citing Local 987, 37 FLRA at 200). The Agency reasserts its argument that proposals which interfere with management's right to determine its internal security practices cannot constitute procedures under § 7106(b)(2) of the Statute.

      The Agency next argues that Proposal 11 is not negotiable because it excessively interferes with management's right to determine its internal security practices. In support, the Agency cites AFGE, Nat'l Border Patrol Council and Nat'l Immigration & Naturalization Serv. Council, 40 FLRA 521 (1991), in which the Authority found that proposals which attempt to define the types of firearms that an agency will authorize for on- and off-duty use excessively interfered with management's right to determine its internal security practices.

      The Agency further argues that Proposal 11 is not an appropriate arrangement under the Statute. In this regard, the Agency reiterates its argument that any adverse effects of its policy flow not from management actions, but, instead, from an employee's decision to carry a personally-owned firearm. As that option is no longer available, the Agency argues that Proposal 11 is moot because employees with 24-hour carry authority can make reasonable diversions on their way to and from work. The Agency also disputes the Union's contention that employees who carry Agency-issued firearms must apply for 24-hour carry authority. Instead, [ v60 p374 ] the Agency contends that once employees complete firearms training, they are automatically eligible for that authority.

2.     Union

      The Union reiterates its argument that the Agency has mis-characterized the scope of its policy restricting employees from making stops and diversions between their residence and work. The Union disagrees with the Agency's assertion that the proposal violates the Agency's right to determine its internal security and interferes with its "right to determine policies and take actions which are part of its plan to secure or safeguard its personnel and physical property." Response at 13.

      The Union also asserts that Proposal 11 is a procedure designed to address how the Agency will exercise its right to determine its internal security practices and its right to require employees to carry a firearm by permitting employees to make reasonable diversions and stops on their way to and from work. The Union contends that Proposal 11 neither directly interferes with the Agency's right to determine its internal security practices, nor prevents the Agency from acting at all. In support of this position, the Union asserts that even if Proposal 11 is adopted, the Agency would not be prevented from requiring employees to carry a firearm while performing their duties, or establishing policies to secure or safeguard its personnel or property.

      In addition, the Union claims that Proposal 11 is an appropriate arrangement. The Union contends that the Agency's policy of requiring employees who are not covered by the 24-hour carry policy to go directly between their residences and their work sites restricts employees' freedom of movement without monetary compensation, reduces their non-duty hours and increases the effort and expenses associated with the extra travel necessitated by the policy. The Union asserts that its proposal would alleviate all of those adverse impacts. According to the Union, Proposal 11 would not prevent the Agency from determining policies and/or actions to secure or safeguard its personnel. Therefore, the Union contends that the benefits of its proposal outweigh any burden imposed upon the Agency and that the proposal constitutes an appropriate arrangement.

C.      Analysis and Conclusions

1.      The proposal is not moot.

      The Agency argues that the proposal is moot because employees are now permitted to make stops on the way to and from work while carrying weapons. According to the Agency, the only employees who were, in the past, prohibited from making such stops were those employees who used personally-owned, rather than Agency-issued, firearms. The Agency states that the policy permitting the use of personally-owned firearms has been discontinued and the Union does not dispute that the policy has been discontinued, but asserts that restrictions on commuting still apply to employees who choose not to apply for the Agency's 24-hour carry policy. The Agency replies that all employees are required to maintain the training and certifications required for the 24-hour policy.

      Although the record supports the Agency's claim that all employees are required to receive the training necessary to be certified to carry weapons 24 hours a day, this does not lead to a conclusion that the proposal will not apply to any employees. SOP, Attachment 3; Reply at 4. In this regard, to qualify for this authority, officers must complete the appropriate training and sign a "24-hour carry . . . certificate." SOP, Attachment 3 at 2. As such, the proposal would benefit employees who either fail mandatory training or refuse to sign the necessary certificate. Thus, the factual basis of the Agency's claim that the proposal is moot is not supported by the record.

2.      The proposal affects management's right to determine its internal security practices under § 7106(a)(1) of the Statute.

      As we stated in connection with Proposal 10(a), it is well established that the right to determine internal security practices under § 7106(a)(1) of the Statute includes the authority to determine the policies and practices that are part of an agency's plan to secure or safeguard its personnel, physical property or operations against internal or external risks. NTEU, 53 FLRA at 581. Where the agency shows a link, or reasonable connection, between its objective of securing or safeguarding its personnel, property, or operations and the policy or practice designed to implement that objective, a proposal that "conflicts with" the policy or practice affects management's right to determine its internal security practices. NTEU, 55 FLRA at 1186. As stated earlier, upon finding such a link, the Authority will not "inquire into the extent of the measures employed to achieve the objective as long as they reasonably relate to the purpose for which the particular security plan or practice is adopted." Local 987, 37 FLRA at 200.

      As stated earlier, management rights under § 7106 of the Statute "encompass actions integral to the exercise of the right, including discussion and deliberation on the relevant factors upon which the decision to act is [ v60 p375 ] made." Local 3434, 49 FLRA at 387. Further, the management rights set forth in § 7106 protect an agency's judgments as to the factors that it will take into account in exercising those rights. NTEU, 47 FLRA at 723-25; Local 683, 30 FLRA at 499-500. Therefore, the Authority will not review the merits of the deliberations, discussions and judgments an agency makes in reaching its ultimate determination as how to exercise its right to determine its internal security practices. Locals 2910 & 2477, 49 FLRA at 839. To do so would involve the Authority in reviewing an agency's judgments as to how it exercises its management right to determine its internal security practices. For the same reason, the Statute precludes the negotiating process from intruding into an agency's substantive decision-making process pursuant to the exercise of a management right.

      The Agency asserts that this proposal would allow all employees to "make diversions and stops on their way to and from work" and that this interferes with its "right to determine policies and take actions which are part of its plan to secure or safeguard its personnel and physical property." SOP at 8-9 (citing Local 987, 37 FLRA at 200). The Agency has determined that in order to safeguard its personnel, the public and physical property, employees who choose not to be covered by its 24-hour carry policy are only authorized to carry a firearm directly to and from work. Id. at 8. Because the Agency has demonstrated a link between its policy and its concern for the safety of its personnel, the public and physical property, the Authority will not review the merits of the Agency's action. AFGE, Local 1030, 57 FLRA 901, 902 (2002).

      The Union's proposal would require the Agency to allow all employees, no matter whether they are covered by the 24-hour carry policy which places restrictions on an employee's conduct, to make reasonable diversions to and from work. Therefore, the proposal affects the Agency's right to determine its internal security practices. NTEU, Chapter 101, 58 FLRA 653, 654 (2003).

3.      The proposal does not constitute a procedure under § 7106(b)(2) of the Statute.

      Proposals that require an agency to change the manner in which it safeguards its personnel, property and the public do not constitute negotiable procedures under § 7106(b)(2) of the Statute. See International Brotherhood of Police Officers, 47 FLRA 397, 398-99 (1993). By requiring the Agency to change its practice of not permitting officers who carry their weapons to and from their residences to make reasonable stops between their residences and work, the proposal in this case does not constitute a procedure within the meaning of § 7106(b)(2) of the Statute. See id.

4.      The proposal does not constitute an appropriate arrangement under § 7106(b)(3) of the Statute.

      The Union claims that Proposal 11 is an appropriate arrangement for employees adversely impacted by the Agency's exercise of its right to determine its internal security practices. We will use the KANG analysis, as set forth above, to analyze this issue.

      While we find that Proposal 11 is an arrangement sufficiently tailored to aid those employees adversely affected by the exercise of a management right, as it would benefit only those employees who either fail training or refuse to sign the "24-hour carry certificate" by permitting them to make reasonable stops and diversions between their residence and their work site, we find that the proposal does not constitute an appropriate arrangement.

      Proposal 11 would require the Agency to permit employees who cannot or do not accept the conditions required for 24-hour carry authority, to make stops between their work site and their residence, while in possession of their authorized firearm. This minimal benefit is more than outweighed by the Agency's interest in protecting the public from the danger posed by employees carrying firearms, especially if those employees are not operating under the restrictions concerning conduct provided for in the 24-hour carry policy. Thus, this proposal is not an appropriate arrangement because it excessively interferes with management's right to determine its internal security practices and is not within the Agency's duty to bargain.

V.      Proposal 14

Proposal 14 provides:

(a)     Customs will provide the impacted officer with written notice stating the specific reason(s) for taking his/ her firearm within fifteen (15) calendar days of denying, suspending or rescinding the authority of an officer to carry a firearm. The notice will specifically explain the nexus between the employee's conduct, and the threat to the safety of the officer or others as required by the proposed handbook. The notice will also state which Employer representative the officer will contact to request an oral and/or a written reply. [ v60 p376 ]

(b)     The officer will have the ten (10) calendar days from receipt of the notice referenced above to respond orally and/or in writing to the action taken by the Agency.

(c)     The Employer's final written decision will be made by a higher level official than the proposing official and will contain the reasons supporting the decision. The decision will also state which Employer representative the officer is to contact to request an appeal of the final decision.

(d)     The officer will have five (5) days to file a written appeal of the final decision to a higher level official than the deciding official. The decision on appeal will issue within ten (10) days of the appeal and will set forth the reasons supporting the decision.

. . . .

(f)      In the event that Customs takes an officer's firearm pending an internal investigation, it will conduct an expeditious investigation on a priority basis. Customs will provide the officer with a written status report on a monthly basis informing the officer of the status of the investigation.

(g)      The removal and/or failure of the Agency to return an employee's firearm are subject to the expedited arbitration procedures found in Article 32, Section 11A of the National Agreement.

(h)      When the Employer has removed an employee's right to possess a firearm and the Employer does not allow the employee to be daily issued a weapon upon starting duty and check it back in upon terminating duty, the following procedures apply:

1)     The Union may file a grievance at Step 1 of the grievance procedure challenging the Employer's decision to no longer allow the officer to possess a firearm and/or the Employer's decision to not return the firearm to the officer. If the grievance has not been resolved within thirty (30) days of the filing of the grievance, the Union may invoke the grievance for arbitration at any time.

2)     The matter will be submitted to the next avail able arbitrator.

3)     There will be no post-hearing briefs nor transcripts, absent mutual agreement.

4)     The Employer will pay all of the costs of the arbitration if any civil matter which led to the removal of the officer's firearm has been resolved, and the Employer has not made an administrative decision on the return of the officer's firearm within thirty (30) days of being informed of the civil resolution.

A.     Severance

      The Union requests that the Authority sever Proposal 14(a) through (d) from the remainder of Proposal 14. The Union also requests that the Authority sever Proposal 14(f) from the remainder of Proposal 14. Additionally, the Union requests a separate negotiability determination for each sentence of Proposal 14(f). The Union further requests that both Proposal 14(g) and Proposal 14(h) be severed from the remainder of Proposal 14. The Agency opposes severing the various sections of Proposal 14, because it argues that severance would serve no purpose.

      Generally, proposals will be severed if the request is supported with an explanation of how each severed portion of the proposal may stand alone and how it would operate. See 5 C.F.R. §§ 2424.22(c) and 2424.25(d). The Union argues, and the plain language of Proposal 14 demonstrates, that the different portions of the proposal can stand independently. The Union explains that Proposal 14(a) through (d) provides "due process procedures which are triggered after [an officer's] authorization to carry firearms have [sic] been removed by the Agency" and that those procedures are independent from the remainder of Proposal 14. Petition for Review at 4. In regards to the severing of Proposal 14(f), the Union asserts that the subsection was designed to operate independently. Id. at 5. The Union argues that the two sentences of Proposal 14(f) are separate, stating, "a monthly status report can be provided whether or not a firearm carriage investigation is given priority and vi[ce] versa." Response at 26. Concerning Proposals 14(g) and 14(h), the Union contends that the subsections provide it with independent mechanisms in the case of removal/failure to return a firearm. Petition for Review at 6. Because the different portions of the provision have independent meaning, consistent with § 2424.22(c) of the Authority's Regulations, we grant the Union's request for severance.

B.     Meaning of the Proposal

      Proposal 14(a) through (d) would permit an employee to challenge the Agency's initial firearms authority decision prior to invoking the parties' grievance and arbitration procedures. Response at 18. The [ v60 p377 ] Agency claims that the proposal would permit an arbitrator to review the Agency's initial firearms authority decision prior to the completion of a full investigation into the matter. Proposal 14(a) through (d), however, does not call for arbitration of an initial decision. Instead, as noted by the Union, it merely requires the Agency to consider information provided by the employee as to why the initial firearms authority decision was wrong. [n9] Id. at 21. Sections (a) through (d) of Proposal 14 concern procedures that would be followed upon denial, suspension or revocation of the authority to carry a firearm. Under these sections, the Agency Handbook would be modified by implementing specific procedures including time frames for notices and Agency responses to appeals. Sections (a) through (d) would provide employees with due process protections that are triggered after authorization to carry firearms has been removed.

      The first sentence of Proposal 14(f) provides that if the Agency takes an officer's firearm pending an internal investigation, it will conduct an expeditious investigation on a priority basis.

      The second sentence of Proposal 14(f) would require the Agency to provide an employee "with a written status report on a monthly basis informing the [employee] of the status" of the internal firearms authority investigation. The Agency stated that this sentence "lacks specificity" and questioned "what the [U]nion is looking for in a monthly status report." SOP at 12-13. In response, the Union stated that it "would expect that the status report include information which would advise the employee of the expected time frame for the completion of the investigation." See Response at 22. The Union further stated that it "is not seeking information related to the investigation which would compromise the integrity of the investigation . . . ." Id. In its reply, the Agency did not challenge the Union's explanation of how the proposal would operate. See Reply at 7-8.

      We adopt the Union's unchallenged explanations that: (1) the status report would include information which would advise the employee of the expected time frame for the completion of the investigation; and (2) the Union is not seeking information related to the investigation which would compromise the integrity of the investigation. These explanations are consistent with the wording of the proposal. See Nat'l Educ. Ass'n, Overseas Educ. Ass'n, Laurel Bay Teachers Ass'n, 51 FLRA 733, 737 (1996). [n10] 

      Section (g) adds the Agency's removal of, or failure to return, an officer's firearm to the actions that qualify for expedited arbitration under the parties' agreement. According to the Union, this proposal "would not require that the Agency issue a final decision on firearm carriage authority before the matter is presented to an [a]rbitrator." Response at 27. The Union also asserts that the proposal would apply to an Agency's decision to deny, suspend, or rescind firearm carriage authority. Id. at 28. According to the Union, the proposal would allow it, once the Agency has made a decision on firearm carriage authority, to submit the issue to expedited arbitration procedures and would expedite the final resolution of firearm carriage authority. Id. at 28-29.

      Based on the Union's explanation of 14(g), we interpret it to allow the Union to submit any decision concerning firearm carriage authority to expedited arbitration proceedings. This would include, as the Union states, a decision to suspend or remove the authority; decisions made before the final determination by the Agency regarding an officer's firearm carriage authority; and any final decision to not return the authority. [ v60 p378 ]

      Section (h) would provide for expedited grievance/ arbitration if an employee's right to carry a firearm has been removed and is not restored on a daily basis to allow an employee to be issued a weapon upon starting duty and return the weapon when terminating duty. It also would provide for expedited arbitration if permission to carry a firearm is not restored to an officer after being withdrawn. Section (h) would also require the Agency to pay arbitration costs if it does not make an administrative decision on the return of an officer's firearm within 30 days of the notice of the civil resolution of an off-duty matter that led to the removal of an officer's firearm.

C.      Positions of the Parties

1.     Agency

      The Agency claims that Proposal 14, in its entirety, excessively interferes with the Agency's right to determine its internal security practices by requiring it to render a decision as to an employee's firearms authority in accordance with time frames in the proposal before the facts obtained from a completed investigation are known. The Agency maintains that Proposal 14 would undermine its plan to safeguard its personnel, property and operations by requiring the Agency or an arbitrator to render a decision before the completion of an Agency investigation. By analogy, the Agency compares Proposal 14 to a proposal that specified the circumstances under which an agency could remove an employee's vehicle from its premises, which the Authority found to excessively interfere with management's right to determine its internal security practices. See AFGE, AFL-CIO, Local 2302, 19 FLRA 778, 782 (1985). According to the Agency, the Authority found that the discretion to determine the circumstances under which removal is appropriate is an integral part of an agency's right to determine its internal security practices. The Agency argues that the same logic should apply to Proposal 14.

      The Agency further contends that requiring the Agency to return a firearm to an employee who may have committed a crime before a full investigation is completed could jeopardize other Agency personnel, property and the public. The Agency acknowledges that the Union's position on Proposal 14(a) through (d) would not preclude the Agency from completing a full investigation before making a firearms authority decision. However, the Agency argues that the Union's proposal would permit an arbitrator to review the initial denial, suspension or revocation of firearm carriage authority (as opposed to the Agency reinstatement decision post investigation) and issue a decision that reinstates the employee's carriage authority before the full investigation is completed. As such, the Agency continues to assert that the proposals impermissibly conflict with its internal security rights.

      With regard to Proposal 14(f), the Agency argues that providing information concerning an internal investigation of an employee could compromise the integrity of the investigation and, thereby, excessively interfere with the Agency's internal security practices. The Agency claims that the Authority, in NFFE, Local 1300, 18 FLRA 789, 796-97 (1985) (Local 1300), found a similar proposal calling for regular progress reports on an investigation to excessively interfere with the Agency's right to determine internal security practices. The Agency further claims that Proposal 14(f) excessively interferes with its right to assign work under the Statute.

      With regard to Proposals 14(g) and (h), the Agency claims that the matter is covered by Articles 31 and 32 of the parties' agreement. While the Agency acknowledges that the parties' agreement has expired, it maintains that the parties have continued to abide by its provisions as past practices.

      The Agency also argues that 14(g) would remove its ability to "conduct full and complete investigations before rendering its decisions" and would require it to act before completing an investigation. SOP at 16, 18. According to the Agency, by permitting arbitral determinations prior to the completion of full investigations, Proposals 14(g) and (h) are not subject to bargaining as procedures or appropriate arrangements. The Agency contends that Proposal 14, in whole or in part, directly interferes with management's right to determine its internal security practices and, therefore, cannot constitute a procedure under § 7106(b)(2) and that the proposal, in whole or in part, is not an appropriate arrangement. It argues that the Union's concern over the stigmatization of an employee whose firearm carriage authority was revoked is speculative. Although the Agency concedes that loss of overtime would result from the denial, suspension or revocation of firearm carriage authority, it argues that such loss of overtime should not be remedied in this fashion.

2.     Union

      With regard to sections (a) through (d), the Union claims that the proposal does not require the Agency to render a decision within specified time frames. According to the Union, once the Agency has provided the reasons for denying or revoking an employee's firearm carriage authority and the employee has responded, the [ v60 p379 ] Agency has no time frame within which it must render a final decision. The Union contends that sections (a) through (d) establish a procedure which addresses how the Agency will exercise its right to determine its internal security practices by allowing the impacted employee to contest the denial or loss of firearm carriage authority after the Agency has exercised that right. The Union argues that Proposal 14 (a) through (d) only obligates the Agency to consider the views of the employee prior to making a final decision on the matter.

      The Union further argues that sections (a) through (d) constitute an appropriate arrangement for employees affected by the Agency's right to determine its internal security practices. In this regard, the Union claims that the denial or revocation of an employee's firearm carriage authority adversely impacts the employee and other co-workers in a number of ways, including loss of potential income from overtime, potential loss of employment, stigmatization over the denial or loss of firearm carriage authority, and increasing the workload for employees who remain eligible for overtime. The Union maintains that sections (a) through (d) of Proposal 14 would allow an employee to respond to the Agency's revocation of his or her carriage authority before a final decision has to be made on the invocation of grievance and arbitration procedures. By so doing, the Union asserts, this portion of the proposal could reduce the negative impacts and that the process will not interfere with the conduct of the Agency's investigation or its right to make a final firearm carriage authority determination.

      The Union argues that Proposal 14(f) is an appropriate arrangement or a negotiable procedure. With regard to the first sentence of section (f), the Union maintains that nothing in the proposal would prevent the Agency from taking the time necessary to conduct a thorough investigation. In the Union's view, the proposal would reduce the amount of time between the initial denial, suspension or revocation of firearm carriage authority, and the final decision, thereby benefitting employees whose firearm carriage authority is ultimately reinstated. The Union argues that the impact of the proposal is minimal because it does not require the Agency to make a final decision prior to the completion of an investigation. The Union maintains that the proposal constitutes an appropriate arrangement because the benefits of the proposal outweigh the interference with management's rights. Further, the Union claims that the sentence does not violate the Agency's right to assign work as it does not prevent the Agency from assigning any work to any employee.

      With regard to the second sentence of Proposal 14(f), the Union argues that the Agency has not explained how informing an employee of the status of an investigation would compromise the integrity of the investigation. The Union indicates that the proposed status reports would "only require the Agency to inform the employee of an expected time frame for when the investigation would be completed" and would not require disclosure of information that could compromise the integrity of the investigation. Response at 23. The Union argues that the second sentence of 14(f) should be found negotiable "despite the Authority's decision in [Local 1300, 18 FLRA 789] for the simple reason that there is absolutely no evidence in the record to explain how informing an employee when an investigation into his conduct will be completed, requires [the Agency] to `reveal privileged and confidential information.'" Response at 23. Further, the Union contends that this portion of the proposal benefits employees by providing them with a means to ascertain the status of an investigation related to them. Therefore, the Union asserts that the second sentence of Proposal 14(f) is an appropriate arrangement as it does not excessively interfere with management's right to determine its internal security practices.

      With regard to Proposal 14(g), the Union claims that the proposal does not affect the Agency's right to determine its internal security practices and, in the alternative, that the proposal constitutes an appropriate arrangement or procedure for employees adversely affected by the Agency's exercise of its right to determine its internal security practices. Response at 28-29. The Union contends that because the parties' agreement has expired, Proposal 14(g) is not subject to the covered by doctrine. The Union also argues that Proposal 14(g) would have "absolutely no impact on the Agency's investigation of firearm carriage authority" and "would not require that the Agency issue a final decision on firearm carriage authority before the matter is presented to an [a]rbitrator." Response at 27. The Union asserts it is "merely attempting to get [the Agency] to make a reasoned decision as soon as reasonably possible[.]" Id. at 28. The Union contends that Proposal 14(g) is a procedure, under § 7106(b)(2), for employees impacted by the Agency's decision to deny, revoke, or suspend their firearm carriage authority. The Union argues that the proposal does not prevent the Agency from acting at all, or directly interfere with management's rights. Furthermore, the Union asserts that Proposal 14(g) is an appropriate arrangement because it would assist in ameliorating, in a timely fashion, the adverse effects of losing one's firearm carriage authority if that authority is ultimately reinstated. The Union contends that requiring [ v60 p380 ] the Agency to submit such an issue to expedited arbitration, instead of traditional arbitration, requires no change in the Agency's internal security practices.

      With regard to Proposal 14(h), the Union again argues that the covered by doctrine does not apply because the parties' agreement has expired. The Union asserts that this portion of the proposal "would leave intact the Agency's management right to determine its internal security practices[.]" Response at 30. The Union also contends that the proposal is an appropriate arrangement or a negotiable procedure which provides an alternate procedure for employees to use if they have been affected by the exercise of management's rights to deny, suspend or revoke their firearm carriage authority. The Union maintains that, under Proposal 14(h), the Agency retains the ability to conduct firearm carriage authority investigations and to make decisions based thereon. The Union claims that under Proposal 14(h), the Agency would have, at a minimum, 165 days to complete its investigation before having to defend its determination in front of the Arbitrator. The Union argues that Proposal 14(h) gives the Agency a sufficient period of time to investigate the matter while ameliorating the adverse financial impact of having one's firearm carriage authority suspended or denied.

D.     Analysis and Conclusions

1.     Proposal 14(a) through (d)

      Proposal 14(a) through (d) provides a method for employees to offer their views on a management action and does not preclude the Agency from completing its investigation before making a decision regarding reinstatement of firearm carriage authority. The Authority has previously found that a pre-decisional procedure that permitted employees to respond to a proposed agency action and provide information related to that proposed action did not interfere with management's right to determine its internal security practices. NTEU, 43 FLRA 1279, 1323 (1992). See also AFGE, AFL-CIO, Nat'l Council of VA Locals, 29 FLRA 515, 522 (1987) (proposal which required the agency to consider the non-binding views of an employee prior to making a final decision did not violate management rights). Because Proposal 14(a) through (d) only requires the Agency to consider information provided by an employee in the course of determining if firearm carriage authority should be reinstated and neither prohibits the Agency from conducting a full investigation into the matter nor permits an arbitrator to review any initial firearm carriage authority decision prior to the completion of a full investigation by the Agency, the portions of Proposal 14 set forth in sections (a) through (d) are within the duty to bargain.

2.      Proposal 14(f), First Sentence

a.      The proposal does not affect management's right to assign work under § 7106(a)(2) of the Statute.

      The first sentence of Proposal 14(f) requires the Agency to conduct an expeditious investigation on a priority basis when it takes an employee's firearm pending an internal investigation. The Agency claims that this sentence excessively interferes with its right to assign work. The Agency, however, presents no explanation of how this portion of Proposal 14 would affect its right to assign work. Therefore, we will not consider this argument. See AFGE, Nat'l Council of Field Labor Locals, 57 FLRA at 295 n.7 (argument that proposal interfered with the Agency's right to determine its mission rejected as a bare assertion).

b.      The proposal affects management's right to determine its internal security practices under § 7106(a)(1) of the Statute.

      Generally, management's right to determine its internal security practices encompasses the policing of its employees. Dep't of the Treasury, United States Customs Serv., El Paso, Tex., 55 FLRA 43, 47 (1998). That right also includes the right to determine the techniques an agency will use to achieve its internal security objectives. AFGE, Council of Prison Locals, Local 919, 42 FLRA 1295, 1298 (1991). The first sentence of Proposal 14(f), by its terms, would require the Agency to give priority to certain investigations. Consequently, as it requires the Agency to conduct its investigations in a certain order, this portion of Proposal 14 affects the Agency's right to determine its internal security practices.

c.      The proposal does not constitute a procedure under § 7106(b)(2) of the Statute.

      Proposals that affect the Agency's determination of when to conduct an investigation in a particular case do not constitute negotiable procedures under § 7106(b)(2) of the Statute. See United States Dep't of Justice, Immigration and Naturalization Serv. v. FLRA, 975 F.2d 218, 222-24 (5th Cir. 1992) (INS) (proposal which required Agency to delay investigation of a case directly interfered with the right to determine internal security practices). By requiring the Agency to conduct an expeditious investigation on a priority basis when it takes an employee's firearm pending an internal investigation, the first sentence of Proposal 14(f) does not constitute [ v60 p381 ] a procedure within the meaning of § 7106(b)(2) of the Statute.

d.      The proposal does not constitute an appropriate arrangement under § 7106(b)(3) of the Statute.

      The Union also maintains that the first sentence of Proposal 14(f) constitutes an appropriate arrangement under § 7106(b)(3). We will analyze this issue using the KANG analysis outlined above. Here, the proposal constitutes an arrangement as it aids employees who are adversely affected by the Agency's act of denying or suspending firearm carriage authority by requiring the Agency to conduct a priority investigation into whether that action was appropriate, which would diminish the adverse financial impact such an action has upon employees who lose or are denied that authority should the initial action be reversed. Further, the first sentence of Proposal 14(f) would benefit only those employees who suffer the adverse impact of the Agency's action in denying, suspending or revoking their firearm carriage authority. Therefore, it is a sufficiently tailored arrangement.

      Having determined that the first sentence of Proposal 14(f) is a sufficiently tailored arrangement, we must look to see if the arrangement is appropriate, by balancing the benefit provided by the arrangement with the burden it imposes. The relevant language would require the Agency to give investigations related to firearm carriage authority greater priority than any other investigations it conducts in the course of accomplishing the Agency's mission no matter how much more time-critical or important those other investigations might be. Thus, this language would require the Agency to conduct an investigation related to firearm carriage authority at the expense of all other pending investigations, no matter the importance of other investigations to the Agency's internal security. The proposal therefore negates the Agency's internal security determination as to which investigations are the most important and in what order of priority those investigations should be conducted. Although the proposal would benefit employees whose initial denial, suspension or revocation of firearm carriage authority is ultimately reversed and reinstated upon completion of the investigation, we find this intrusion upon the Agency's right to decide which investigative work is most important to the accomplishment of the Agency's operations outweighs the benefits. Thus, despite the possibility that some employees would benefit from this proposal, we find that the burden this portion of the proposal would impose upon the Agency is not outweighed by the benefit it would provide and conclude that the first sentence of Proposal 14(f) is not an appropriate arrangement.

3.      Proposal 14(f), Second Sentence

      We have granted the Union's request to sever the first sentence of Proposal 14(f) from the second. Therefore we must also examine the negotiability of the second sentence of Proposal 14(f) standing alone. As discussed previously, management's right to determine internal security practices under § 7106(a)(1) of the Statute includes the authority to determine the policies and practices that are part of an agency's plan to secure or safeguard its personnel, physical property or operations against internal or external risks. NTEU, 53 FLRA at 581. Where the agency shows a link, or reasonable connection, between its objective of securing or safeguarding its personnel, property, or operations and the policy or practice designed to implement that objective, a proposal that conflicts with the policy or practice affects management's right to determine internal security practices. NTEU, 55 FLRA at 1186.

      An agency's right to determine its internal security practices "includes management action to prevent improper or unauthorized disclosure of privileged or confidential information[.]" Local 2050, 36 FLRA at 639. Proposals or provisions that require agencies to disclose confidential or privileged information concerning an investigation affect management's right to determine its internal security practices under § 7106(a)(1). See, e.g., NTEU, 55 FLRA at 1186-87 (Member Wasserman dissenting in part) (provision involved audiotapes and videotapes of interviews with witnesses, the disclosure of which could have compromised agency's investigation); AFGE, AFL-CIO, Local 1738, 27 FLRA 52, 54-56 (1987) (Local 1738) (Authority rejected union's claim that proposal requiring agency to notify union immediately of results of investigations involving unit employees "was not intended to . . . preclude the disclosure of confidential information[]"); Local 1300, 18 FLRA at 796-97, (agency argued that proposal involved, and Authority applied case law regarding, "privileged and confidential information"); Nat'l Labor Relations Bd. Union, 5 FLRA 696, 697-98 (1981) (NLRBU) (proposal granting union and employees right to copy investigative files). By contrast, where an agency does not demonstrate that the information addressed by a union proposal is privileged or confidential, or that release of the information otherwise relates to the determination of the agency's internal security practices, the proposal does not affect management's right to determine internal security practices. [n11]  See [ v60 p382 ] Local 2050, 36 FLRA at 639-40; NTEU, Chapter 153, 21 FLRA 841, 847 (1986) (Chapter 153). [n12] 

      Proposal 14(f) would require the Agency to provide an employee with a monthly, written report informing the employee of the status of an internal firearms authority investigation, including the expected time frame for completion of the investigation. The Agency does not claim that disclosing information concerning either the status or the expected time frame of an investigation is privileged and confidential, nor does the Agency dispute the Union's claim that the proposal would not require disclosure of information that would compromise the Agency's investigation. Additionally, the Agency does not explain how declining to provide the report is linked or reasonably connected to the Agency's objective of securing and safeguarding Agency personnel, property or operations. Consequently, there is no basis on which to conclude that the Agency could be required to disclose privileged or confidential information. Accordingly, the Agency has not demonstrated that the second sentence of Proposal 14(f) affects management's right to determine its internal security practices under § 7106(a)(1) of the Statute, and we conclude that the second sentence of Proposal 14(f) is within the duty to bargain.

4.     Proposal 14(g)

a.      The proposal affects management's right to determine its internal security practices under § 7106(a)(1) of the Statute.

      It is well established that an agency's right to determine internal security practices includes the right to determine the investigative techniques it will use to achieve its internal security objectives. AFGE, Local 701, Council of Prison Locals 33, 58 FLRA 128, 131-32 (2002) (AFGE, Local 701) (citing AFGE, Fed. Prison Council 33, 51 FLRA 1112, 1115 (1996); NAGE, Locals R14-22 and R14-89, 45 FLRA 949, 960 (1992)). In addition, an agency's determination as to whether, and to what extent, its personnel should be armed is a decision concerning the Agency's internal security practices. IFTPE, Local 25, 33 FLRA 304, 306-07 (1988).

      We have interpreted this proposal to allow the Union to submit an Agency decision on firearm carriage authority to expedited arbitration, even if the decision being challenged reflects an initial decision, pending further investigation, where the Agency has not fulfilled its internal security objective of investigating the matter before determining whether to arm the employee. The Agency does not argue that the removal or failure to return an employee's firearm is not subject to arbitration, but rather that the proposal would allow the Union to invoke expedited arbitration on decisions that have not been fully investigated. Thus, the proposal would not allow the Agency to properly conduct and complete investigations into the removal or failure to return firearm carriage authority before an initial or interim decision would be subject to an expedited arbitration proceeding.

      This portion of Proposal 14 would require the Agency to give priority to certain investigations in an attempt to complete an investigation before any decision was subject to expedited arbitration proceedings and/or risk the return of an employee's carriage authority without a complete investigation. In addition, the Agency would have to complete an investigation by a pre-determined date. Because the Agency's right to determine its internal security practices includes the right to determine the techniques it will use to achieve its internal security as well as the right to determine whether and to what extent personnel will be armed, this portion of the proposal affects the Agency's right to determine its [ v60 p383 ] internal security practices. AFGE, Local 701, 58 FLRA at 131-32; IFTPE, 33 FLRA at 306-07.

b.      The proposal does not constitute a procedure under § 7106(b)(2) of the Statute.

      The Union claims that Proposal 14(g) is a procedure under § 7106(b)(2), in that it attempts to bring about a reasoned decision as to an employee's firearm carriage authority as soon as possible. Response at 28. It argues that the Agency "has had enough time to resolve this matter on its own [but] has failed." Id. As stated in regards to Proposal 14(f), proposals that require the Agency to conduct investigations in a certain order do not constitute negotiable procedures under § 7106(b)(2) of the Statute. See INS, 975 F.2d at 222-24 (proposal which required an agency to delay investigation of a case directly interfered with the right to determine internal security practices). Further, this portion of the proposal would preclude the Agency from enforcing its internal security objective of completing an investigation into a matter before making a determination on whether to return firearm carriage authority to an employee. Proposals that affect an agency's determination as to whether, and to what extent, its personnel should be armed do not constitute negotiable procedures within the meaning of § 7106(b)(2) of the Statute. IFTPE, 33 FLRA at 306-07.

c.      The proposal does not constitute an appropriate arrangement under § 7106(b)(3) of the Statute.

      We must also determine whether Proposal 14(g) constitutes an appropriate arrangement using the analytical framework set forth by the Authority in KANG. Proposal 14(g) would permit employees to challenge an Agency's firearm carriage authority decision, including a decision that may occur prior to an investigation being completed, through the parties' expedited arbitration procedures. It would aid those employees, whose firearms authority is ultimately reinstated by the Arbitrator, by resolving the matter sooner than would occur under the parties' grievance procedure. This, in turn, would enable those employees who regain their firearm carriage authority to work overtime in positions requiring a firearm. Thus, Proposal 14(g) constitutes a sufficiently tailored arrangement because it provides a benefit to those employees adversely affected by the Agency's right to determine its internal security practices if their firearm carriage authority was denied, suspended or revoked improperly.

      Having determined that Proposal 14(g) is a sufficiently tailored arrangement, we must now determine whether it is an appropriate arrangement by balancing the benefit provided to employees against the intrusion on management's rights. Proposal 14(g) would provide a benefit to employees whose firearm carriage authority is restored more quickly by an arbitrator under the expedited arbitration process. Proposal 14(g) would impose a burden on the Agency by allowing an employee to utilize the expedited arbitration procedure to challenge the Agency's decision to remove the employee's firearm even before a full investigation is completed. We interpreted this proposal to allow a Union to submit any decision concerning firearm carriage authority to expedited arbitration proceedings because the withdrawal of firearm carriage authority occurs in a variety of contexts prior to the Agency's completion of an investigation and final determination on firearm carriage authority. As the proposal would require the Agency to conduct an expedited investigation or risk the matter going to expedited arbitration before an investigation may be completed, the proposal excessively interferes with the Agency's right to determine its internal security practices.

      Because only some employees' firearm carriage authority would be restored and only those employees could enjoy the benefit of having the Agency's determination reversed by virtue of an incomplete investigation, we find that the burden imposed by Proposal 14(g) outweighs the benefit it would provide. Thus, this portion of the proposal is not an appropriate arrangement under the Statute and is not within the duty to bargain because it excessively interferes with the Agency's right to determine its internal security practices. [n13] 

5.     Proposal 14(h)

a.      The proposal affects management's right to determine its internal security practices under § 7106(a)(1) of the Statute.

      The Union argues that this portion of the proposal "leaves intact" the Agency's right to determine its internal security practices and we construe this as an argument that the proposal does not affect the Agency's right. As stated above, the right to determine internal security practices includes an agency's determination as to whether, and to what extent, its personnel should be armed as well as the right to determine the techniques it will use to achieve its internal security. AFGE, Local 701, 58 FLRA at 131-32; IFTPE, 33 FLRA at 306-07. We interpreted this portion of the proposal to [ v60 p384 ] allow the Union to use expedited arbitration procedures if the Agency, upon removing an employee's firearm carriage authority, does not restore that authority on a daily basis to allow an employee to be issued a weapon upon starting duty and return the weapon when terminating duty. As this proposal would require the Agency to give priority to certain investigations or risk an employee having firearm carriage authority restored on a daily basis before an investigation regarding the removal of carriage authority has been completed, the proposal affects the Agency's right to determine its internal security practices. Id.

b.      The proposal does not constitute a procedure under § 7106(b)(2) of the Statute.

      Proposals that affect an agency's determination as to whether its personnel should be armed do not constitute negotiable procedures under § 7106(b)(2) of the Statute. IFPTE, 33 FLRA at 306-07. As this proposal would affect the Agency's determination as to when it would restore firearm carriage authority to its personnel, the proposal in this case does not constitute a procedure within the meaning of § 7106(b)(2) of the Statute. See id.

c.      The proposal does not constitute an appropriate arrangement under § 7106(b)(3) of the Statute.

      The Union also asserts that Proposal 14(h) constitutes an appropriate arrangement for employees adversely affected by the Agency's exercise of its right to determine its internal security practices. We will again analyze this using the framework set forth by the Authority in KANG. This proposal would permit employees to challenge the Agency's initial or subsequent decision to suspend or revoke an employee's authorization to carry a firearm through arbitration when the employee is not issued a weapon for daily use. It would aid only those employees whose firearm carriage authority is reinstated by an arbitrator in that their grievances would be reviewed sooner. This, in turn, would enable those employees who regain their firearm carriage authority to work overtime in positions requiring an armed employee. As such, Proposal 14(h), would provide a benefit to some employees adversely affected by the Agency's right to determine its internal security practices. Further, Proposal 14(h) is tailored to benefit only those employees whose firearm carriage authority was suspended or revoked. Therefore, we find that Proposal 14(h) constitutes a sufficiently tailored arrangement.

      Having found that Proposal 14(h) is sufficiently tailored, we must determine if it is an appropriate arrangement. Similar to Proposal 14(g), this proposal would benefit those employees whose firearm carriage authority is reinstated by an arbitrator, but the extent to which that benefit will actually arise is not established in the record. In contrast to that benefit, the proposal mandates a final resolution in all cases by a pre-determined date, even though investigation of the matter that caused the Agency to have concern about the employee being armed might not be complete. As noted above, an agency's determination as to whether its personnel should be armed is a decision concerning the Agency's internal security practices. Proposal 14(h) significantly intrudes on that right, as it would permit an arbitrator to restore an employee's firearm carriage authority before the conclusion of the Agency's investigation into the matter. We find that this proposal constitutes excessive interference with the Agency's right to determine its internal security practices and as such, that it does not constitute an appropriate arrangement under § 7106(b)(3). Accordingly, we find that this portion of the proposal is outside the Agency's duty to bargain. [n14] 

VI.     Order

      The petition for review is dismissed insofar as it pertains to Proposal 10(a), Proposal 11, and those portions of Proposal 14 identified as the first sentence of (f) and (g) and (h). The Agency shall, upon request, or as otherwise agreed to by the parties, bargain over those portions of Proposal 14 identified as (a), (b), (c), (d) and the second sentence of (f). [ v60 p385 ]

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APPENDIX

The Memorandum entitled "24-Hour Carry of Firearms by Office of Field Operations Personnel" dated March 3, 2000, and submitted as an attachment to the Union's Response provides, in relevant part:

[P]ersonnel authorized to be armed may carry their service-issued firearm 24 hours a day. 24-hour carry will provide officers with the increased capability to protect themselves while off-duty. Under this policy, officers will only be permitted to carry service-issued weapons with which they have successfully qualified.

The carriage of a firearm while off duty is voluntary under this authority.

This authority presents a tremendous responsibility and has potential for significant liabilities to the individual officer, as well as the Customs Service. Any officer who elects to carry a service-issued firearm off-duty must realize that his or her behavior must be significantly modified while armed. There are major restrictions in behavior and limitations on mobility, as the weapon must remain under the officer's control at all times.

Intervention in criminal activities while off-duty is not the purpose of 24-hour carry. This issue is governed by the directive, "Customs Officers Responding to State Crimes," No. 4510-016A (February 23, 2000). An off- duty armed OFO officer is permitted to use a service-issued firearm under two circumstances: for self-defense and to come to the aid of another law enforcement officer. Any Customs officer who uses his or her service- issued firearm in a manner that is not permitted under the State Crimes Directive, may be subject to disciplinary action.

. . . .

Directors, Field Operations may for just cause limit an officer's authorization to carry service-issued firearms off-duty. Officers who are restricted from carrying a firearm 24 hours, may be permitted to carry the firearm to and from work. . . .

The Treasury Policy, dated December 28, 2000, and submitted as an attachment to the Union's Response, provides, in relevant part:

IV.     POLICY:

All Treasury Law Enforcement Officers authorized to carry firearms in the performance of their official duties are personally responsible for the security of all firearms to prevent unauthorized use, unintentional discharge, and theft. When not under the Law Enforcement Officer's immediate control, one of the following methods of securing the firearm must be used:

Firearm storage in a government office:

a.     Place in a lock box or other secure and locked container such as a safe, file cabinet, or desk.

b.     Control of the combination or keys to the safe, file cabinet, or desk must be maintained to prevent unauthorized access to firearm.

c.     At no time is a firearm to be left in an unlocked file cabinet, desk drawer, or other unsecured location.

Firearm storage in a residence:

a.     Install a safety lock device; and,

b.     To guard against theft or unauthorized use, firearm in a residence shall not be stored in plain view.

Firearm storage in a vehicle:

As a routine matter, firearms should not be stored in a vehicle. However, in certain situations the lack of a more secure storage location may make it necessary to temporarily store a firearm in a vehicle. In these situations, the Law Enforcement Officer should take every precaution to ensure a firearm stored in a vehicle is protected against theft or unauthorized use.

See also Customs Service Memorandum dated March 6, 2001, entitled "Implementation of the Treasury Firearms Safety and Security Policy," Attachment to Union's Petition for Review.

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File 1: Authority's Decision in 60 FLRA No. 77
File 2: Opinion of Chairman Cabaniss
File 3: Opinion of Member Pope

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Footnote # 1 for 60 FLRA No. 77 - Authority's Decision

   Pursuant to the Homeland Security Act of 2002 (Pub. L. 107-296; 6 U.S.C. § 101, et. seq.), the United States Customs Service of the Department of the Treasury transferred to the United States Department of Homeland Security, Customs and Border Protection. 6 U.S.C. § 203(1). There is no evidence in the record that this change has affected the continued processing of this case.

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Footnote # 2 for 60 FLRA No. 77 - Authority's Decision

   The opinion of Chairman Cabaniss, dissenting in part, and the opinion of Member Pope, dissenting in part and concurring in part, are set forth at the end of this decision.

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Footnote # 3 for 60 FLRA No. 77 - Authority's Decision

   The relevant language regarding the 24-hour carry is set forth in the Appendix to this decision.

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Footnote # 4 for 60 FLRA No. 77 - Authority's Decision

   The text of the policy containing these requirements is set forth in the Appendix to this decision.

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Footnote # 5 for 60 FLRA No. 77 - Authority's Decision

   5 C.F.R. § 2424.26(a) provides, in pertinent part:

The purpose of the [A]gency's reply is to inform the Authority and the exclusive representative whether and why it disagrees with any facts or arguments made for the first time in the exclusive representative's response.

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Footnote # 6 for 60 FLRA No. 77 - Authority's Decision

   Although both parties address aspects of this proposal relating to the carriage of personally-owned firearms, it appears that the Agency has discontinued its practice of permitting the use of personally-owned firearms. See SOP at 9. However, the use or non- use of personally-owned firearms does not affect the resolution of this issue.

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Footnote # 7 for 60 FLRA No. 77 - Authority's Decision

   Recently, the Authority considered a substantially similar proposal which stated that the Agency would ensure that a secure and locked container would be available at all government offices where employees who carried a firearm were assigned. The Authority determined that the proposal in that case, like the proposal here, affected management's right to determine its internal security practices by requiring the Agency to establish a certain level of security at all facilities. NTEU, 59 FLRA 749, 753 (2004), petition for review filed, No. 04-1157 (D.C. Cir. May 10, 2004) (Member Pope dissenting).

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Footnote # 8 for 60 FLRA No. 77 - Authority's Decision

   The fact that the Agency provides overnight firearms storage facilities at some locations also constitutes a determination by management that security at those locations is safe and effective - itself an exercise of the right to determine internal security practices.

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Footnote # 9 for 60 FLRA No. 77 - Authority's Decision

   The meaning that the Authority adopts for this provision, unless modified by the parties, would apply in other disputes, such as arbitration proceedings, where the construction of this provision is at issue. See NEA, Overseas Educ. Ass'n, Laurel Bay Teachers Ass'n, 51 FLRA 733, 741-42 (1996).

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Footnote # 10 for 60 FLRA No. 77 - Authority's Decision

   Member Armendariz agrees that the Union's explanation--that it is not seeking information related to the investigation which would compromise the integrity of the investigation--is consistent with the wording of the proposal. However, he believes that there is a question as to whether the Union's explanation of the proposal as requiring the Agency to inform an employee of the expected time frame for when an investigation would be completed is consistent with the wording of the proposal. "Expected completion date" refers to when, in the future, the Agency intends to complete a specific action, namely, the investigation. "Status" refers to "a state of affairs: situation" which connotes what the Agency's current actions are and where matters stand in the investigation. Webster's Third New International Dictionary (1986).

      In Member Armendariz's view, the release of information as to when an agency intends to complete an investigation could, in some circumstances, result in the release of confidential or privileged information. The determination as to whether the disclosure of an expected completion date of an investigation might involve the disclosure of confidential or privileged information would have to be made based on the particular circumstances and arguments presented by the parties. In this case, the Agency does not challenge the Union's explicit statement that the proposal does not seek the release of information that would compromise the investigation, nor has the Agency otherwise established that the disclosure of an expected completion date would result in the release of confidential or privileged information. Consequently, based on this record, there is no basis on which to conclude in this case that the second sentence of Proposal 14(f) requires the Agency to disclose privileged or confidential information.

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Footnote # 11 for 60 FLRA No. 77 - Authority's Decision

   In Local 1300, where the agency argued that the proposal involved, and the Authority applied case law regarding, privileged and confidential information, the Authority also stated that "it is irrelevant what information concerning the investigation management is required to disclose. . . . [T]he right to determine the nature and extent of the information concerning an investigation which it will disclose, and to whom it will disclose that information, is reserved to management under the Statute." Local 1300, 18 FLRA at 796-97. Although this statement did not specifically identify that the information at issue was confidential or privileged, it is clear from the decision as a whole that Local 1300 was based on the confidential or privileged nature of the information that would be disclosed. In particular, in Local 1300, the Authority stated that it "has held that rules and policies pertaining to the disclosure of privileged and confidential information constitute internal security practices within the discretion of management to determine under section 7106(a)(1)." See id. at 796.

      As such, Local 1300 is consistent with the standard set forth elsewhere in the Authority decisions cited above: a proposal that requires an agency to disclose confidential or privileged information concerning an investigation affects management's right to determine its internal security practices under § 7106(a)(1). If an agency does not demonstrate that the information addressed by a union proposal is privileged or confidential, or that release of the information otherwise relates to the determination of the agency's internal security practices, the proposal does not affect management's right to determine internal security practices.

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Footnote # 12 for 60 FLRA No. 77 - Authority's Decision

   Member Pope notes that, consistent with this precedent, the assertion in the Chairman's dissent that it is "irrelevant" whether information to be disclosed is confidential or privileged is unsupported. Slip op. at 48-49. In three of the four decisions cited by the dissent--NTEU, Local 1738, and Local 1300--it was either undisputed or apparent that the information involved was confidential and privileged. In the fourth--Chapter 153--the proposal was found within the duty to bargain.

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Footnote # 13 for 60 FLRA No. 77 - Authority's Decision

   In light of the above resolution, it is unnecessary to address the Agency's argument that Proposal 14(g) is covered by the parties' agreement.

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Footnote # 14 for 60 FLRA No. 77 - Authority's Decision

   In light of the above resolution, it is unnecessary to address the Agency's argument that Proposal 14(h) is covered by the parties' agreement.